A 'Constant and Difficult Task': Making Local Land Use Decisions in States with a Constitutional Right to a Healthful Environment
University of Montana - Alexander Blewett III School of Law
August 13, 2010
Ecology Law Quarterly 38:1 (2011).
This article examines the role local governments play in four states that have constitutional rights to a healthful environment – Illinois, Pennsylvania, Montana, and Hawaii. Scholars such as John R. Nolon and Patricia E. Salkin have long noted that local governments work as quiet yet integral third partners with state and federal government by addressing environmental issues through land use regulation. Because local government jurisdiction extends to areas not reached by federal and state laws, and because local government is most familiar with the resources in its jurisdiction, its role in assessing environmental impacts can be profound.
But for local governments in environmental rights states, environmental protection is not just an aspiration, but a constitutional mandate. Thus, this article in Part I argues that environmental rights cannot be fully protected without the strong engagement of local government. Part II of this article then sets forth the constitutional provisions of Illinois, Pennsylvania, Montana, and Hawaii and summarizes how the environmental rights case law intersects with the land use law in each state. Here, the article updates much earlier comparative scholarship on environmental rights, using a land use lens. This comparative analysis reveals some remarkable differences among the four states, as well as important commonalities that help us predict future developments in environmental rights jurisprudence. This part also builds on the observations of Barton “Buzz” Thompson and other environment rights scholars who have noted a gap between the constitutional right to a healthful environment and its regulatory implementation. It is local government that can fill much of this gap.
In Part III, this article combines the theoretical with the practical by presenting a checklist of topics that local governments can consider in designing regulations that protect environmental rights. Even in states lacking a constitutional right provision, local governments can benefit from the practical suggestions offered here. These suggestions are drawn from a comparative analysis of cases and statutes in the four environmental rights states. Although state variations require some differences in approach, the article concludes that when local governments proactively address environmental rights, they will create land use processes that better protect the environment, provide consistency and predictability for landowners, and are more likely to be upheld on appeal.
Number of Pages in PDF File: 62
Keywords: land use, clean and healthful environment, environmental rights, state constitution, local government
JEL Classification: H7, K11, K32, O2, O13, N4, N5, Q15, Q2, R15, R5
Date posted: October 1, 2010 ; Last revised: May 16, 2013